The opinion of the court was delivered by: Pisano, District Judge.
Presently before the Court is a motion by defendants, Thomas Jefferson University Hospitals, Inc., Jefferson University Physicians, Cataldo Doria, M.D., Jean Novak, BSN, and James F. Burke, Jr., M.D., to dismiss the complaint for failure to comply with New Jersey's Affidavit of Merit statute, N.J.S.A. 2A:53A-27. Plaintiffs David and Megan Mulholland ("Plaintiffs") oppose the motion as to defendants Dr. Doria, Dr. Burke and Thomas Jefferson University Hospitals, Inc. (the "Hospital," together with Drs. Doria and Burke, "Defendants").*fn1 The Court decides this matter without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons set forth below, the motion to dismiss is granted.
According to the First Amended Complaint, Plaintiff David Mulholland ("Plaintiff") was diagnosed with polisistic kidney disease in 1987. First Am. Compl. ¶ 1. In March 2007, a co-worker agreed to donate a kidney to Plaintiff, and the process of planning for the transplant took place during spring and summer of that year. Id. ¶ 2-3. Blood tests were done on Plaintiff, which showed that Plaintiff was positive for the HHV-6 virus.*fn2 Id. ¶ 5, 7-8. Plaintiff alleges that none of the defendants advised him "about his HHV-6 positive status, nor discussed or informed him about the medical implications of his positive status to the success of the transplant." Id. ¶ 9.
The blood work done on Plaintiff also showed that Plaintiff tested negative for the CMV virus.*fn3 Id. ¶ 10. However, blood test showed that the donor was positive for the CMV virus. Id. After the transplant surgery, Plaintiff began "suffering symptoms of CMV virus and tested positive for the virus." Id. ¶ 11. Plaintiff did not learn that his donor had tested positive for CMV until sometime in or about January 2008, after undergoing surgery. Id. ¶ 13. Plaintiff's wife, co-plaintiff in this action, tested negative for the CMV virus prior to the transplant surgery but contracted the virus from Plaintiff following the surgery. Id. ¶ 12. According to Plaintiff, if he had been advised by defendants of the donor's positive CMV blood test result or his own positive HHV-6 result, he would have chosen to receive a kidney from his wife rather than the donor. Id. ¶ 16.
Plaintiffs filed this suit in August 2009 and filed an amended complaint in August 2010. Defendants answered the amended complaint and, thereafter, filed this motion alleging that Plaintiff failed to comply with the Affidavit of Merit statute. In their brief opposing the motion, Plaintiffs explain that after initiating this suit against the Defendants, Plaintiffs' counsel approached various doctors in order to obtain an affidavit of merit, and at least two doctors declined the request. As explained by Plaintiffs, counsel discussed the issue with two licensed physicians: Dr. Phillip Paparone, an infectious disease physician, and Dr. Nasser Youseff, the Director of Kidney Transplant at Our Lady of Lourdes Medical Center. Pl. Brf. at 7-8. According to Plaintiffs, both physicians refused to sign an affidavit of merit because they suggested that a donor being positive for CMV is so common that it would not cause a specific professional obligation to inform a transplant patient about the risk of infection. Id.
Ultimately, Plaintiffs were successful in obtaining an affidavit of merit from Dr. Neal Rehberg, a physician in West Virginia, who practices family medicine. Def. Motion to Dismiss Exh. B. The affidavit provided by Dr. Rehberg addresses only the conduct of Dr. Doria and another physician who is not a party to this case. According to Defendants, this affidavit was provided on January 5, 2011.
Plaintiffs' First Amended Complaint contains five counts: Count One -- "Lack of Informed Consent"; Count Two -- "Assault and Battery"; Count Three -- "Professional Malpractice"; Count Four -- "Negligence"; and Count Five -- "Fraudulent Misrepresentation". In Plaintiffs' opposition to Defendants' motion, they indicate that they are abandoning all but two counts. Id. at 2. They intend to proceed with: (1) lack of informed consent against Dr. Doria and Dr. Burke based upon the failure to provide informed consent; and (2) fraudulent misrepresentation against Thomas Jefferson University Hospital for their alleged participation in the informed consent process. The Court, therefore, dismisses the abandoned claims and address this motion only as to the remaining informed consent and fraudulent misrepresentation claims.
Defendants first argue that the affidavit of merit provided by Plaintiff was untimely.
Defendants' answer was filed on August 30, 2010. Plaintiffs provided their affidavit of merit 128 days later, on January 5, 2011. Defendants also argue that the affidavit provided, which is expressly "focused" only on Dr. Doria, is not in compliance with the Affidavit of Merit statute because Dr. Rehberg, who is not a surgeon, is not qualified to provide an affidavit as to the claims against Dr. Doria. In response, Plaintiff argue that an affidavit of merit is not required for their claims and, even if one is required, their affidavit substantially complies with the statute. As discussed below, the Court finds that an affidavit of merit is required for each of Plaintiffs' claims, and the affidavit of merit provided for the claims against Dr. Doria is not in compliance with the relevant statute.
A. Requirement of an Affidavit of Merit
Under the Affidavit of Merit Statute, when filing an "action for personal injuries . resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation," a plaintiff must provide, within 60 days of a defendant's answer to the complaint, an affidavit to each defendant by an "appropriate licensed person," indicating that there is a "reasonable probability" that the defendant's conduct fell outside the acceptable norms or standards of the profession.*fn4 N.J.S.A. ...